Dressing down discriminatory dress codes

This year, on International Women’s Day, the Ontario Human Rights Commission (OHRC) released a new report, Not on the Menu: Inquiry report on sexual and gender-based dress codes in Ontario’s restaurants. This report outlines findings from an inquiry into dress codes at various Ontario restaurants and commitments made by a number of Ontario restaurant chains to put an end to discriminatory dress codes for restaurant staff — particularly female and transgender workers — and create more inclusive workplaces. The OHRC also released its Policy position on sexualized and gender-specific dress codes.

The result: sexual harassment and gender-based dress codes are off the menu, and will no longer be tolerated. Thus, employers with discriminatory dress codes expose themselves to liability.

The impetus for this report arose because some restaurants across Ontario have dress codes that require female servers to wear short skirts, tight dresses, high heels or low-cut tops; the same does not apply to male servers. Due to the systemic nature of the problem and the impact based on protected grounds under the Ontario Human Rights Code, such as age, sex, creed, gender identity and gender expression, the OHRC decided to have a “call to action” on gender-based dress codes.

Hopefully, this report will bring about change which is long overdue.

Impact of discriminatory dress codes on employees

Most workers in restaurants and bars across Ontario are women, many of whom are young and precariously employed. As a result, they are prone to being more vulnerable and are less likely to be aware of or be able to assert their rights.

Sexual dress codes reinforce stereotypical and sexist notions about females, and can lead to discrimination based on various code-protected grounds. In fact, sexual harassment is quite common in some restaurants and bars, and may be perpetuated by the normalization of sexual dress codes.

This is the reality of the restaurant industry and, consequently, many workers are afraid to object to dress codes or complain about sexual harassment and other discrimination. Not surprisingly, the report revealed that some workers fear reprisal for raising such concerns. Workers who object to wearing gender-specific outfits may be at greater risk of losing their job or not being hired. Even if workers object or complain, restaurants are often unresponsive and dismissive, effectively condoning a discriminatory workplace.

Accordingly, although gender-based dress codes may seem like a narrow issue to focus on, it is a critical first step to eradicating sexual harassment and other discrimination in the workplace.

Limits on employer’s management rights

The report maintains that organizations can have uniform policies for staff that are in line with their corporate brand, ensure a professional image, address health and safety-related concerns, and meet their organizational goals. These are recognized as “legitimate business interests.” However, the policies and requirements must comply with the code. For instance, if an employer believes that having a sexual dress code will increase the organization’s competitiveness and profits, it cannot simply turn a blind eye to its discriminatory effects and violate employees’ code-protected rights.

In that regard, employers are obligated to take reasonable steps to prevent and address harassment and discrimination in the workplace, such as by not requiring sexual or gender-stereotypical clothing. Employers that fail to prevent sexual harassment and discrimination, appropriately respond to and handle staff complaints, or accommodate employees up to the point of undue hardship, are viewed as contributing to a discriminatory work environment. For example, in McKenna v. Local Heroes Stittsville, the respondent sports bar had cut the server’s shifts after she raised concerns about wearing a new form-fitting uniform due to her visible pregnancy. Previously, she had been allowed to wear loose t-shirts. The Human Rights Tribunal of Ontario (HRTO) found that management, in their effort to re-brand by emphasizing the sexual attractiveness of their staff (almost all young women), saw the applicant’s visible pregnancy as inconsistent with their re-branding efforts. The HRTO found this to be discriminatory, and ordered the respondents to pay her $17,000 for injuring her dignity and almost $3,000 in lost wages.

In September 2016, Bill 132, which amends Ontario’s Occupational Health and Safety Act (OHSA), came into force in Ontario. The bill includes sexual harassment in the definition of workplace harassment and creates new obligations to address sexual harassment in the workplace. This legislation outlines employers’ obligations to have clear policies, outlines how and to whom an individual is to report an incident of sexual harassment, and delineates how allegations of sexual harassment will be investigated and reported. In that regard, the Ontario Ministry of Labour has issued acode of practice to help employers comply with the OHSA’s harassment provisions.

The report, in line with Bill 132, aims to put an end to workplace discrimination.

Therefore, employers must ensure their workplaces are free of discrimination and harassment; otherwise, they expose themselves to liability for violating employees’ human rights, bad publicity, the risk that they will lose employees without the ability to replace them with quality individuals, as well as decreased employee productivity, low morale, and increased absenteeism.

Employers can no longer ignore the elephant in the room, nor can they afford to.

Best practices: Policy and process

Employers must recognize that different employees may have different code-related needs and are affected in different ways by uniform requirements. Accordingly, it is crucial to have clear, comprehensive and inclusive policies; processes to address complaints about dress codes, sexual harassment, and other discrimination; and accommodation processes.

The OHRC has developed tools that employers can use to comply with its policy position and remove discriminatory barriers, such as those created by sexual dress codes. For instance, the OHRC has prepared a checklist for employers to ensure their dress codes comply with the code.

Employers would be well-advised to adopt the following practice tips:

• Policies and processes should be written and put into practice.

• Retain records of harassment and discrimination complaints, accommodation requests, and all assessments.

• Accommodate up to the point of undue hardship.

• Consider options and be flexible.

• Train employees.

• Investigate workplace harassment and discrimination complaints.

• Communicate findings of harassment and discrimination complaints, including a general summary and intended future preventative steps. Where necessary, provide additional details (such as changing shifts).

• Educate yourself and your employees.

By releasing this report, the OHRC expressed the growing intolerance for sexual harassment and other discrimination; contributed to the ongoing (and much needed) dialogue about the barriers women face in the workplace; acknowledged the vulnerability of many employees who do not object to sexual dress codes or complain about harassment due to fear of reprisal; recognized that proactive steps must be taken by employers to remove discriminatory barriers; and provided practice tools for employers to help create workplaces that are barrier-free and to ensure compliance with the Code.

This message is a long time coming but is strong — discriminatory dress codes and sexual harassment will no longer be tolerated. Many restaurants have already amended or drafted policies and processes to comply. The challenge will be the obvious next step: putting them into practice.

For more information see:

• McKenna v. Local Heroes Stittsville, 2013 HRTO 1117 (Ont. Human Rights Trib.).

• Not on the Menu: Inquiry report on sexual and gender-based dress codes in Ontario’s restaurants, http://www.ohrc.on.ca/en.